1 2025:CGHC:36446 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR ACQA No. 507 of 2019 1 - State Of Chhattisgarh Through Station House Officer, Police Station Somni, District Rajnandgaon Chhattisgarh. ... Appellant. versus 1 - Eknath Mohite S/o Mohan Mohite Aged About 26 Years R/o Village Mohtra Police Station Bora Khedi Amaldar District Buldhana Maharashtra. (Accused) ... Respondent. For Appellant : Shri Dilman Rati Minj, Govt. Advocate. Hon'ble Shri Justice Deepak Kumar Tiwari Judgment On Board 28/07/2025 1. This Acquittal Appeal has been preferred under Section 378 (3) of the Code of Criminal Procedure, 1973 against the judgment dated 27.01.2015 passed by the Special Judge (constituted under NDPS Act, 1985), Rajnandgaon, Chhattisgarh in Special Criminal Case No.19/13 whereby, the learned Special Judge acquitted the accused/respondent herein of the charge under Section 20 (b) (ii) (B) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter “ the NDPS Act, 1985”). 2. Case of prosecution, in brief, is that on 25.06.2013, at about 01:25 pm, AVINASH SHARMA Digitally signed by AVINASH SHARMA Date: 2025.07.30 10:51:43 +0530 2 secret information was received that respondent/accused is in illegal possession of contraband Ganja near Thakur Tola chowk falling within the ambit of police station Somni. The said information was recorded vide Ex.P/4 and the independent witnesses were called by Constable (PW-8) namely Vedram Khunte who gave notice (Ex.P/5) to witnesses namely Shyamu Yadav (PW-4) and to Jharokhelal (PW-7) vide Ex.P/24. In the presence of these two independent witnesses, seizure was made from the respondent/accused and contraband Ganja in plastic bags was recovered. The same was weighed by Govind (PW-1) vide Ex.P/2 and in five plastic bags total 89 kilograms 700 grams of contraband Ganja was found which was seized vide Ex.P/18. Patwari (PW-2) namely Ratiram Sahu prepared the spot map vide Ex.P/3. Crime details form was prepared vide Ex.P/8. Statement of the witnesses were recorded. After completion of investigation, charge sheet was filed. 3. During trial, respondent/accused abjured his guilt and claimed to be tried. 4. In order to prove its case, prosecution examined as many as 10 witnesses and exhibited 37 documents. 5. In the statement recorded under Section 313 Cr.P.C., respondent/accused stated false implication and did not adduce any defense evidence. 6. After evaluating the evidence, learned trial Court acquitted the respondent/accused of the charge under Section 20 (b) (ii) (B) of the NDPS Act, 1985. Hence this acquittal appeal. 7. Learned counsel appearing on behalf of the appellant/State would submit that as there is reliable statement of the Investigating Officer namely Yogita Kharpde (PW-9), therefore, finding recorded by the trial Court acquitting the accused is absolutely unjustified. He prays to allow the 3 appeal. 8. I have heard learned counsel for the State, considered his submission, and perused the impugned judgment of acquittal as also other material available on record with utmost circumspection. 9. It is well settled that even in the matter of independent witnesses turning hostile, cannot be a ground for acquittal under the NDPS Act. The said proposition has also been reiterated in the matter of Rizwan Khan Vs. State of Chhattisgarh, {(2020) 9 SCC 627}. Similarly, it is also well settled that if evidence of a police officer is found to be reliable and trustworthy then basing the conviction thereupon cannot be questioned. However, when the prosecution comes up with a story that at the time of search and seizure, there are two independent witnesses and both have turned hostile which creates a gapping hole in the prosecution theory about the very search and seizure, in such circumstances, the Hon’ble Supreme Court in the matter of Sanjeet Kumar Singh Alias Munna Kumar Singh vs. State of Chhattisgarh {(2022) 16 SCC 58} has materially observed at Para 18, which reads as under: 18. But if the Court has (i) to completely disregard the lack of corroboration of the testimony of police witnesses by independent witnesses; and (ii) to turn a Nelson’s eye to the independent witnesses turning hostile, then the story of the prosecution should be very convincing and the testimony of the official witnesses notably trustworthy. If independent witnesses come up with a story which creates a gaping hole in the prosecution theory, about the very search and seizure, then the case of the prosecution should collapse like a pack of cards. It is no doubt true that corroboration by independent witnesses is not always necessary. But once the prosecution comes up with a story that the search and seizure was conducted in the presence of 4 independent witnesses and they also choose to examine them before Court, then the Court has to see whether the version of the independent witnesses who turned hostile is unbelievable and whether there is a possibility that they have become turncoats. 10.Reverting back to the facts of the present case, after getting the secret information, the Investigating Officer namely Yogita Kharpde (PW-9) has prepared Mukhbir Panchnama vide Ex.P/4 under Section 42 (2) of the NDPS Act, 1985. 11.When a query was put to learned State counsel as to whether Section 42 (2) of the NDPS Act, 1985 would apply in the facts of the present case, he fairly admits that as the place wherefrom the contraband Ganja has been recovered is an open public place as the search was effected on a national highway and provisions under Section 42 of the NDPS Act, 1985 are applicable only when the search is made from a building, conveyance, or enclosed place. Therefore, Section 43 of the NDPS Act, 1985 would apply for seizure and arrest in a public place. When a further query was put to learned Govt. Advocate about recording any such information in the daily diary and whether such fact has been proved during trial, learned GA has failed to demonstrate the same. 12. In the case at hand, seizure memo has been prepared vide Ex.P/18 and learned trial Court, in para 25 of the impugned judgment, has recorded a finding that the same has been prepared subsequently after taking the samples vide Ex.P/16. Ex.P/16 was recorded at about 04:40 pm on 25.06.2013 and the seizure memo was prepared on the same day at about 05:45 pm. Although a recovery memo was prepared separately vide Ex.P/13 but in the said recovery memo, there was no mention about the number of bags seized from the possession of the applicant. Although the 5 same has been later on mentioned in the weighing panchnama vide Ex.P/2. In Namuna Seal Panchnama (Ex.P/16) there was no mention about the specimen of the seal which was used for sealing the seized property. The said fact has been admitted by the Investigating Officer (PW-9) in the cross-examination. After perusal of Ex.P/16, this Court finds that no such specimen has been affixed. 13. Section 55 of the NDPS Act reads as under: “55. Police to take charge of articles seized and delivered. An officer-in-charge of a police station shall take charge of and keep in safe custody, pending the orders of the Magistrate, all articles seized under this Act within the local area of that police station and which may be delivered to him, and shall allow any officer who may accompany such articles to the police station or who may be deputed for the purpose, to affix his seal to such articles or to take samples of and from them and all samples so taken shall also be sealed with a seal of the officer-in-charge of the police station.” A careful reading of the above quoted provision would show that the purpose and object of Section 55 of the NDPS Act is to rule out any possibility of tampering the sample as stringent provisions with regard to punishment for offence under the Act have been made. The sanctity of the sample therefore has to be proved by the prosecution by leading thorough evidence. 14. This Court in the matter of Narendra Bhushan Dubey vs. State of Madhya Pradesh (now CG)1 has laid down the consequence of non- compliance of Section 55 of the NDPS Act in Para-18 of the pronouncement, which reads thus: “18. The Investigating Officer, who was the officer incharge of the police station and who seized the contraband has been examined by the 1 2011 (1) CGLJ 259 6 prosecution as PW-4. In his cross-examination, he has stated that seized ganja was sealed with the seal of the police station. In his cross- examination, he admits that he has seal in his own name. The mandate to Section 55 requires the officer in-charge of the police station to seal the sample with his own seal. However, no explanation has come forth from the prosecution even in the cross-examination of R.K. Rai (PW-4) as to why the officer in-charge did not affix his seal as required under Section 55 of the Act. This aspect assumes importance as in the cross- examination, a suggestion has been given that the incident happened in the night at some other place and the accused was sent to the police station along with the constable and the Investigating Officer had gone to Sakari where signatures of the witnesses were taken on all the documents. Section55 of the Act of 1985 requires the officer-in-charge of police station to take charge of and keep in safe custody all seized articles. The statutory scheme of the Act engrafted under Section 55 requires the officer-in-charge of the police station to seal all the samples with his own seal. The legislative intention is that there should be fair investigation for keeping the seized article in safe custody of the highest officer of the concerned police station so as to eliminate the possibility of the sample being tampered with till the same reaches the hands of the chemical examiner. Under provision contained in Section 55 such a duty has been enjoined upon the officer in-charge of the police station with the manifest object that the senior officers can be trusted to be fair in investigation and not indulging in dubious practices. When the prescribed procedure is abandoned, it gives rise to gnawing suspicion particularly when in the present case, the officer in-charge/S.H.O. himself had seized the articles.” 15.Furthermore, Govind (PW-1) has also admitted the fact that before using his weighing instrument, verification was not done as to whether the said instrument was working properly or not. 16. Investigating Officer namely, Yogita Kharpde (PW-9) has also admitted the fact that no entry was made about the safe custody of the samples of the contraband in Malkhana Register (Ex.P/22(c)). Both the seizure witnesses have completely turned hostile and not supported the case of the Investigating officer. 17.Shyamu (PW-4) deposed that he has never seen the accused and has signed all the papers at the police station and when he signed those papers, the same were blank. Similarly, Jharokhelal (PW-7), in his statement, categorically deposed that when his signature was obtained, 7 accused/respondent was not present and at that time, there were no bags and only upon asking by the Police, he has put his signature on such papers. 18.Vedram Khunte, Head Constable (PW-8), who called the aforesaid two independent witnesses by giving notice under Section 160 Cr.P.C., in the court statement, has stated that the said witnesses were firstly called at the police station. On going through the notices (Ex.P/5 and Ex.P/24) wherein, it has been mentioned that the independent witnesses were called at Thakur tola chowk, it appears that this witness is not aware as to whether before proceeding from the police station for serving the notice under Section 160 Cr.P.C. on the independent witnesses, the same was recorded in the police station diary or not. 19. In the matter of Budh Singh vs. State of U.P. [(2006) 9 SCC 731], the Hon’ble Supreme Court held that in a matter of Appeal against acquittal, the High Court should not ordinarily set aside a judgment of acquittal in a case where two views are possible, although the view of the Appellate Court is a more probable one. However, while dealing with a judgment of acquittal, it is free to consider the entire evidences on record so as to arrive at a finding as to whether the views of the trial Court were perverse or otherwise unsustainable. It is also entitled to consider as to whether in arriving at a finding of fact, the trial Court has failed to take into consideration admissible evidence and has taken into consideration evidence brought on record contrary to law. 20.Further, in the matter of V.N. Ratheesh vs. State of Kerala, (2006) 10 SCC 617, the Hon’ble Supreme Court held that there is no embargo on the Appellate Court reviewing the evidence upon which an order of acquittal 8 is based. Generally, the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. The Hon’ble Supreme Court said that the golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. It is further held that the paramount consideration of the Court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent. In a case where admissible evidence is ignored, a duty is cast upon the appellate Court to re-appreciate the evidence where the accused has been acquitted for the purpose of ascertaining as to whether any of the accused really committed any offence or not. It was also observed that the principle to be followed by appellate Court considering the appeal against the judgment of acquittal is to interfere only when there are compelling and substantial reasons for doing so. If the impugned judgment is clearly unreasonable and convincing materials have been unjustifiably eliminated in the process, it is a compelling reason for interference. 21.Recently, in the matter of Constable 907 Surendra Singh & another vs. State of Uttrakhand, 2025 INSC 114, the Hon’ble Supreme Court has observed that the interference with the finding of acquittal recorded by the trial judge would be warranted by the High Court only if the judgment of acquittal suffers from patent perversity; that the same is based on a misreading/omission to consider material evidence on record; and that no two reasonable views are possible and only the view consistent with the 9 guilt of the accused is possible from the evidence available on record. 22.In view of the aforesaid discussion, and for the fact that independent witnesses, who turned hostile, not only denied having witnessed anything but also came up with a plausible explanation regarding their signature in the document and the infirmities found which are fatal to be relied upon as also the statement of police officers, this Court is of the opinion that the view taken by the trial Court is possible one. 23.In the result, no case is made out for interference in the impugned judgment. In consequence, this Appeal fails and is hereby dismissed at the motion stage itself. Sd/- (Deepak Kumar Tiwari) Judge Avinash